Heroin death prosecutions spike in Wisconsin

But use of the homicide charge varies widely by county

May 30, 2014

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Written by

Gannett Wisconsin Media Investigative Team

How we did it

The Gannett Wisconsin Media Investigative Team used online court records to examine how many heroin-related deaths are being prosecuted in Wisconsin and what sentences have resulted. Since publicly accessible court records can’t be searched by a specific crime, Gannett Wisconsin Media hired Madison-based Court Data Technologies to extract the needed records using its subscription access to the court database. The search targeted charges of first-degree reckless homicide by drug delivery, which applies to any person who manufactures, distributes or delivers a controlled substance (including heroin and many other drugs) that leads to an overdose death. To examine sentencing, Court Data Technologies provided case numbers for each of the 23 convictions for first-degree reckless homicide by drug delivery in 2013. The I-Team then examined media reports from each case to determine that 21 of those cases were related to heroin. The company also provided the number of charges filed by county since 2010, which the I-Team compared to its previously compiled data on heroin-related deaths. The statistics don’t align exactly since the homicide charges could relate to other drugs and prosecutors can charge more than one person for a given death, but the comparison shows whether counties with the most heroin deaths generally pursue related homicide charges. The homicide charges include all cases where the defendant was charged at any point with felony first-degree reckless homicide by drug delivery, including cases where the charge was amended to a lesser offense as part of a later plea agreement. The number of sentences from a given year is significantly less than the number of charges because some people are exonerated or convicted of lesser charges. And since the cases generally take a year or more to conclude, the 2013 sentences stem from years where there were fewer heroin-related deaths.

About this report

This story is part of our ongoing “Deadly Doses” series, which examines the spread and impact of heroin across Wisconsin. Sunday: Heroin death prosecutions have spiked in Wisconsin, but vary dramatically by county. Monday: Will any of the legislative bills signed into law by Gov. Scott Walker deter heroin use?

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Amid a statewide surge in heroin use, Wisconsin prosecutors are more frequently pursuing charges against those who provide fatal doses — doubling the number of such homicide charges from 2011 to 2013.

County prosecutors charged 71 people with first-degree reckless homicide by drug delivery in 2013, up from 47 in 2012 and 34 each of the two years prior, according to a Gannett Wisconsin Media Investigative Team analysis of court records provided by Court Data Technologies. The 2013 total marked a 50 percent increase in prosecutions as heroin overdose deaths rose by only 10 percent.

“I’ve seen that trend and I have to frankly applaud authorities for their vigorous prosecution,” said William Lennon, a former Winnebago County district attorney who has also defended several drug-related homicide cases. “I absolutely believe prosecutors should make it a priority.”

Through May 18, prosecutors filed 36 drug-related homicide charges in Wisconsin, putting the state on pace for a record number in 2014.

But the scales of justice are unevenly weighted.

A crime that yields a decade or more in prison for offenders in one county may not even be prosecuted in the next, according to a Gannett Wisconsin Media analysis of court data. For the charges that are filed, sentences vary widely — ranging last year from nine months in jail to 12 years in prison, the review found.

The homicide charge can be filed for selling or otherwise providing an array of illegal drugs linked to an overdose death, but it has been used almost exclusively for heroin deaths. Last year, 21 of the 23 convictions were in heroin deaths.

Prosecutors are among the government and community leaders searching for solutions as heroin use soars in Wisconsin. The number of heroin overdose deaths, heroin cases submitted to the State Crime Lab and heroin-related arrests more than doubled from 2010 to 2013.

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Wisconsin has had a law criminalizing drug-delivery deaths since 1988, when a wave of state and federal legislation passed after the 1986 cocaine overdose death of Len Bias, a top NBA prospect. But the law was rarely used in Wisconsin, with 10 or fewer convictions recorded annually as recently as 2003-07.

Brigette Henschel, whose 21-year-old daughter Amalia died of a heroin overdose in April 2012, said she pities the two men who allegedly sold heroin to her daughter, but said they must be held accountable. The men were charged with drug-related homicide in Waushara County, but those counts were dismissed in favor of heroin charges that are now pending in federal court.

“I understand they were probably addicts to begin with and have a disease, and I feel sorry for them, I really do,” said Henschel, of rural Wautoma. “But if (they) do commit a crime, (they) still have to pay for our actions, no matter what. … Our lives are never going to be the same.”

Charges vary widely by county

Some of the counties hardest hit by heroin have filed few, if any, related homicide charges.

Over the last four years, Milwaukee County had a total of 198 heroin-related deaths, but prosecutors filed only 19 “Len Bias” charges. (The charge and death numbers don’t align exactly since a handful of charges each year relate to drugs other than heroin, and some heroin deaths result in charges for multiple people.)

Dane County had 97 heroin-related deaths but only 11 charges from 2010 to 2013. Kenosha County tallied 56 heroin-related deaths without a single homicide drug-delivery charge.

“In part, we’ve made it a priority because our drug task force and our local law enforcement have done a good job of following up on those deaths to find out where those drugs came from,” said Brown County District Attorney David Lasee.

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Waukesha County filed the most drug-related homicide charges in the state with 26 over the last four years, compared to 40 heroin deaths. Among counties with at least 10 heroin deaths from 2010 to 2013, charges were also frequent in Fond du Lac County (13 charges compared to 12 deaths) and La Crosse County (seven charges compared to 11 deaths).

Ron Sullivan, director of the Criminal Justice Institute at Harvard Law School, said the discrepancy “on its face seems unfair,” but it is not surprising given the power prosecutors have to set policy in their counties.

Bob Zapf, Kenosha County district attorney, said in an email that heroin use is at epidemic levels in his county. He said that he “has always been” in favor of prosecuting drug-delivery homicides. His office has filed one Len Bias case so far in 2014 after filing none the prior four years.

“The problem, if there is a problem, is law enforcement being able to obtain enough evidence to prove a case and then making a referral ... not the prosecution,” Zapf wrote in an email. “There is no policy not to prosecute.”

Capt. Eric Larson of the Kenosha Police Department said heroin homicides are difficult to investigate since it’s not always immediately clear if a death is drug-related.

Overdose deaths hard to investigate, prosecute

Prosecutors say drug death homicides are among the hardest cases to prove, a problem exacerbated at times by lack of police know-how.

“Many times the individuals who received the drugs and overdosed, they had points of contact with several people who could have provided them the drugs that night,” said Dodge County District Attorney Kurt Klomberg. “So we might have a good idea who it was, but being able to actually reach a level where we can charge and prove the case is another story.”

Waukesha County District Attorney Brad Schimel said the cases require coordination between prosecutors and those who first arrive on the scene.

“You’ve got to have your law enforcement and even your EMS trained to know how to do these kinds of investigations, to recognize the signs, to know how to preserve the evidence,” said Schimel, who is running as a Republican to become Wisconsin’s next attorney general. “It’s a lot of legwork. It’s old-fashioned policing — calling people, knocking on doors.”

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Law enforcement errors forestalled prosecution in Marathon County several years ago, said Assistant District Attorney Lance Leonard. A body was released to a family and cremated because the death wasn’t initially flagged as suspicious, but blood taken before cremation revealed a level of heroin intoxication that was likely fatal. Without an autopsy to rule out other causes of death, prosecutors couldn’t prove heroin was the cause and didn’t file charges.

“We’ve learned a lot, and it’s unfortunate that we’ve had to learn that (way),” said Leonard, noting that police now contact him immediately after any suspicious death to ensure a coordinated and thorough investigation.

Sentences in drug deaths inconsistent

Punishments varied greatly last year for those convicted of providing a fatal dose of heroin.

Statewide, 21 people were convicted of the felony charge in 2013, and five were sentenced to at least 10 years in prison. Four of the five were involved in typical drug dealer-seller transactions, but Kevin S. Cobus of Waukesha got 12 years in prison — the longest sentence in the state last year — after two friends he took to Milwaukee to buy heroin died of overdoses.

Ten other people convicted in 2013 were sentenced to five years or less, though only one avoided prison entirely. Darren Ciampa, of Green Bay, was sentenced by a Dane County judge to nine months in jail for bringing heroin to a homebound, disabled friend at a Madison apartment. Many of the lesser sentences involved friends buying heroin together.

Lasee said prison sentences in Len Bias cases show the community takes heroin seriously. But Klomberg, of Dodge County, said he doubts harsh sentences deter future offenders since “people just don’t have any grasp on reality when they are in the throes of opiate addiction.”

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Statewide, the sentences for the 21 heroin death charges averaged just over six years in prison, according to Court Data Technologies. The homicide charge carries a maximum of 25 years in prison.

In Minnesota, the six drug death homicides from 2010 to 2012 yielded an average sentence of eight years, according to the Minnesota Sentencing Guidelines Commission. Sentences averaged six years for the cases since 2010 in Washington State and 14 years in Pennsylvania for the three cases charged in 2012.

Fairness of homicide charge debated

Robin Shellow, a Milwaukee attorney who has defended roughly a dozen people in Len Bias cases, said the pressure to pursue drug homicide cases has risen due to the broad demographics of heroin users.

“When poor people of color die, quite frankly, there’s a lot less attention given to it,” Shellow said. “But when there’s a father, a mother, a sister, a brother who has a voice in the community, who’s not disenfranchised, then they’re capable of bringing power and influence to bear to get prosecutors to charge these cases.”

Sullivan, the Harvard Law professor, said he thinks prosecutors will pursue drug homicide cases “much more aggressively” over the next 10 to 15 years — but he doesn’t think it’s right.

“The level of punishment should not be based on fortuity,” Sullivan said. “It should be based on the intent of the individual at the time the crime was committed.”

“It’s a situation where a person doesn’t set out to cause the ultimate harm but engages in conduct that clearly has the potential to do that,” Klomberg said. “There’s a recognition (for victims’ families) that their loved one was important and that they have suffered through this, and that as society we’re going to punish someone for the reckless behavior that took their loved one away.”